Does a Delaware police department have to answer written questions submitted as a FOIA request?

Official title

18-IB16 3/12/2018 FOIA Opinion Letter to Mr. Kushal Shah re: FOIA Complaint Concerning the Wilmington Police Department

Plain-English summary

Kushal Shah, incarcerated at James T. Vaughn Correctional Center, petitioned the AG alleging he had sent the Wilmington Police Department (WPD) several FOIA requests, including three specific questions, and received no response. WPD's legal counsel told the AG that its FOIA Coordinator searched his records and could not locate any request from Shah, but nonetheless answered all three of Shah's questions as a courtesy in the Response Letter.

The AG found no FOIA violation, for two independent reasons. First, based on WPD's representations, there was no evidence WPD had actually received a FOIA request to respond to in the first place. Second, and more fundamentally, the AG reaffirmed a long line of its own prior opinions holding that FOIA does not require a public body to answer questions at all, it only requires producing existing public records, so even if WPD had received Shah's request, declining to answer his questions would not have been a FOIA violation.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Can I use a Delaware FOIA request to get written answers to questions from a police department?

No, according to this opinion, which reaffirmed a long-standing line of AG opinions holding that FOIA obligates a public body to produce existing public records, not to answer questions posed by a requester, regardless of how the request is phrased.

What happens if a public body says it never received a FOIA request the requester claims to have sent?

Based on this opinion, the AG will look at the agency's own search and representations; here, WPD's FOIA Coordinator reported finding no record of the request, and the AG accepted that at face value in the absence of contrary evidence.

If a public body voluntarily answers questions even though FOIA doesn't require it, does that change the analysis?

Not according to this opinion. WPD's legal counsel answered Shah's three questions as a courtesy, but the AG's determination rested on the legal point that FOIA never required those answers in the first place, not on whether they were ultimately provided.

Background and statutory framework

Delaware FOIA, 29 Del. C. §§ 10001-10007, lets a requester petition the AG under 29 Del. C. § 10005(e) when a public body allegedly fails to respond to a records request. The AG's office has consistently held, across opinions spanning from 1997 through 2017, that FOIA is a records-access statute, not an interrogatories mechanism: it requires production of existing public records but does not obligate a public body to answer questions a requester poses, however the request is framed.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10005(e) (petition procedure for AG determination)

Source

• Landing page: https://attorneygeneral.delaware.gov/2018/03/16/18-ib16-3-12-2018-foia-opinion-letter-mr-kushal-shah-re-foia-complaint-concerning-wilmington-police-department/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2018/03/Attorney-General-Opinion-No.-18-IB16.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630

DEPARTMENT OF JUSTICE CRIMINAL DIVISION (302) 577-8500
NEW CASTLE COUNTY FAX: (302) 577-2496
MATTHEW P. DENN 820 NORTH FRENCH STREET FRAUD DIVISION (302) 577-8600
ATTORNEY GENERAL WILMINGTON, DELAWARE 19801 FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 18-IB16

March 12, 2018

VIA U.S. MAIL

Kushal K. Shah

SBI # [Redacted]

James T. Vaughn Correctional Center
1181 Paddock Road

Smyrna, DE 19977

RE: FOIA Petition Regarding the City of Wilmington Police Department
Dear Mr. Shah:

We write in response to your correspondence, received on February 22, 2018, alleging that
the City of Wilmington Police Department ("WPD") violated Delaware's Freedom of Information
Act, 29 Del. C. §§ 10001-10007 ("FOIA"). We treat your correspondence as a petition ("Petition")
for a determination pursuant to 29 Del. C. § 10005(e) regarding whether a violation of FOIA has
occurred or is about to occur. We invited WPD to submit a written response to the Petition. We
received a response from the City's legal counsel on March 8, 2018. As set forth more fully below,
it is our determination that WPD did not violate FOIA as alleged.

In your Petition, you allege that you sent several requests to the WPD pursuant to
Delaware's FOIA and received no response. Importantly, you state that you requested answers to
three specific questions. In response, the City's legal counsel states that WPD's FOIA Coordinator
has reviewed his records and was unable to locate a FOIA request from you. In an effort to assist
you, the City's legal counsel provided answers to each of your questions.

Based upon the representations of the FOIA Coordinator and the City's legal counsel, we
cannot conclude that WPD violated FOIA. Indeed, even if WPD had received your request, we
note that FOIA does not require a public body to answer questions.[1]

Very truly yours,

Michelle E. Whalen
Deputy Attorney General

APPROVED BY:

Allison E. Reardon, State Solicitor

cc: Luke Mette, City Solicitor (via email)
William B. Larson, Senior Assistant City Solicitor (via email)

[1] See, e.g. Del. Op. Att'y Gen. 17-IB05, 2017 WL 1317847, at 3 (Mar. 10, 2017); Del. Op.
Att'y Gen. 17-IB04, 2017 WL 1317846, at 2 (Mar. 8, 2017); Del. Op. Att'y Gen. 08-IB05, 2008
WL 1727613, at 1 (Feb. 22, 2008); Del. Op. Att'y Gen. 00-IB08, 2000 WL 1092967, at 2 (May
24, 2000); Del. Op. Att'y Gen. 97-IB06, 1997 WL 606408, at *5 (Mar. 17, 1997).